Ohio appeals court affirms obscenity conviction of adult bookstore

Monday, January 4, 1999

An Ohio state appeals court recently affirmed the obscenity convictions of a company that owns an adult bookstore which sold sexually explicit videotapes.

Law enforcement officials charged Midwest Pride IV, Inc., which does business as the Lion's Den Adult Bookstore, after officials purchased two videos in the Fayette County store, “Rammin' and Crammin'” and “Guys Who Butt Ball Themselves.”

In August 1997, a jury convicted the company on two obscenity counts.

On appeal, the company argued that the trial judge erred in not allowing its attorney to introduce into evidence a public opinion survey of county residents conducted by sociologist/ criminologist Dr. Joseph Scott.

The defense had prepared to call Scott as an expert witness to testify that, from the results of his survey evidence, the videos could not be classified as legally obscene.

In 1973, the U.S. Supreme Court in Miller v. California established a three-part test to determine whether materials can be classified as obscenity. A video can be considered obscene if it meets all of the following:

  • The average person applying contemporary community standards finds that the video, taken as a whole, appeals to the prurient interest.
  • The video depicts, in a patently offensive way, sexual conduct specifically defined.
  • The work taken as a whole lacks serious literary, artistic, political or scientific value.

The trial court judge excluded Scott's evidence, stating: “I don't believe that telephone or public opinion polls are correct ways to determine what is obscene material. … I agree … that the results of the public opinion poll are irrelevant.”

In State v. Midwest Pride IV, Inc., the Ohio appeals court acknowledged that the U.S. Supreme Court has determined that a defendant in an obscenity case can introduce “competent, relevant and appropriate expert testimony.”

The appeals court determined that the survey was inadmissible because it did not address the specific videos at issue in the case.

The court reasoned that in order to be admissible, a survey must “address community standards in general” and “address the community's acceptance of the particular work in question.”

“No question [in the survey poll] specifically references the videotapes in question,” wrote the three-member court. The court also noted that “there is, no doubt, a large difference in communicative impact between the written phrase 'homosexual fellatio and anal intercourse' and the vivid description of it on video.”

The court concluded: “We, therefore, find that Dr. Scott's public opinion poll evidence was of marginal probative value and was in fact potentially prejudicial, misleading and confusing to the jurors.”

Fayette County prosecuting attorney Steven Eckstein said: “The court's decision was proper. Survey evidence in an obscenity case must address the specific material at issue.”

J. Michael Murray, attorney for the Midwest Pride, said: “I definitely plan to file an appeal with the Ohio Supreme and, if need be, to the U.S. Supreme Court.”